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Q&A: NSAC Policy Director on S. 510, II

Ferd Hoefner, Policy Director, National Sustainable Agriculture Coalition (NSAC), talks about S. 510, the FDA Food Safety Modernization Act. Part II: On traceability and recordkeeping, exemptions for small food facilities, and S. 510 in its current form.

Q: Update me on the negotiations over Senator Sherrod Brown (D-OH) amendment to the traceability and recordkeeping section of the bill. What were the details of the amendment and were all parties able to reach an agreement?

A: Senator Sherrod Brown’s office has been working on an amendment to ensure FDA full and speedy traceability in the case of a food safety emergency. The National Sustainable Agriculture Coalition has worked with the Senator’s office to craft language that would not reduce FDA’s ability to identify the source of contaminated food but would recognize the different ways that food moves in the US food system. For example, farmers selling at farmers markets cannot be expected to keep track of the names and addresses of all the customers they sell to directly but that does not create a problem because in the unlikely event that someone should get sick the customer knows where the product came from–the direct relationship between the producer and the consumer is the best protection and further recordkeeping would be unnecessary. The negotiations are continuing on the amendment and we have not seen final language, but we trust issues related to direct marketing and to farm identity-preserved marketing will be dealt with appropriately.

Q. Senator John Tester (D-MT), wants to exempt food facilities with under $500,000 gross sales from preventative control plan requirements, and traceback and recordkeeping provisions. It gained strong support within the sustainable Ag community and it’s based on the assumption that locally grown foods are inherently safer. Do you agree?

A: The current FDA regulations in our view make little sense. All farms that would otherwise be declared food facilities by FDA because of specific normal farming activities or on-farm value-adding processing activities are currently exempt from all requirements on all of their production if more than 50 percent of their gross sales are direct sales to consumers. From the farmer perspective, an operation with substantial direct sales may be over 50 percent one year, and under 50 percent the next year depending on markets and other variables. From the government perspective, there are no government statistics at FDA or USDA or anywhere else that track the amount of sales made directly to consumers. In a word, the current regulation is impractical and perhaps also illogical. The Tester approach is a great improvement over the current situation and in our view could be further improved to make it even more practical.

Support for the Tester amendment does not rise or fall on whether one supports local food systems or not. Current FDA regulations, which are assumed by S. 510, presume that local, directly purchased food is safer. But it is impractical. The Tester amendment creates a practical standard, but in no way ties it to either local food or to direct purchase. So in reality it is current law, not the Tester amendment, which is based on assumptions about the safety of local food.

Q: Quoting several people in the Food Safety News story, Farmers Gain in Senate Food Safety Battle, David Acheson, former associate commissioner of foods at FDA, sees no solid evidence that unconventionally-grown food is microbiologically safer and said Tester’s proposal goes too far. “It is asking for trouble…and it is not sound public health policy,” he said. Tony Corbo, a lobbyist for Food & Water Watch, pointed out that, based on the 2007 Agriculture Census released by the USDA last year, nearly 95 percent of domestic farms would be exempt. To me, it seems to leave an enormous amount of the nation’s food production unregulated. How should the issue of food safety be managed by those producers?

A: What is Food & Water Watch’s view on how many farms are exempt under current FDA regulation? The answer is they don’t know. Neither does FDA, or anyone else. What they do know, but choose to obfuscate, is that 75 percent of the market value of all agricultural products are from farms with over $500,000 gross sales. So yes, 95 percent of all domestic farms, but representing just a quarter of total product, would be exempt under Tester. However, even that understates the case, as that is for all of agriculture, and the bill does not deal with livestock at all and it emphasizes specialty crops in particular.

The percentage of the market value of specialty crops that would be exempt under Tester is far smaller than for agriculture as a whole. So Food & Water Watch should stop playing fast and loose with numbers. More importantly, the proposed Tester-crafted exemption is more practical and makes more sense than the existing FDA-crafted exemption. Both, on the other hand, could be improved.

Q: Let’s wrap it up. What do you think about the bill in its current form?

A: Watching the evolution of the FDA Food Safety Modernization Act has been an interesting experience. National Sustainable Agriculture Committee members approached the process with deep misgivings but have been impressed by the genuine bipartisan commitment to crafting meaningful legislation. However, in our view, the bill’s supporters and even its detractors do not generally say very much about the bill’s cost. In a word, it is very high. If many of the promises in the bill are ever to become reality, it will take a very significant boost in congressional appropriations for the FDA budget. That being the case, it is paramount that everything that can be done will be done to focus the bill on the most pressing and important food safety concerns. Spreading the net too wide will doom the effort to failure, waste taxpayer resources, and not help create a safer food supply.

See Part I of the discussion from yesterday on what the National Sustainable Agriculture Coalition likes about S. 510, what concerns the coalition has with the bill, and whether proposed amendments to S. 510 that have been introduced to help small, sustainable agriculture will jeopardize food safety.

Editor’s Note: This article was written by Chuck Jolley, special to Food Safety News.

Chuck Jolley’s statement that the Tester amendment is “based on the assumption that locally grown foods are inherently safer” is absolutely not true.
The Tester amendment exempting small food facilities is based upon the fact that Hazard Analysis & Risk-based Preventive Control (HARPC) plans were created and designed for highly processed food made via large, involved, industrial processes. HARPC plans are completely inappropriate for small processors and DO NOT WORK in any process that doesn’t have a “kill step.” Raw agricultural products by their very nature cannot have “kill steps” or they are no longer raw agricultural processes.
As pointed out by Mr. Hoefner, the Tester amendment on traceback recognizes the reality of how the farmers market part of the American food system works and that short supply chains are not where traceback and recordkeeping are needed.
Mr. Jolley’s later statement “To me, it seems to leave an enormous amount of the nation’s food production unregulated” shows how little Mr. Jolley understands the existing regulation of agriculture and food and what S 510 will actually do.
First, we, growers, processors and distributors are far from unregulated. We have thousands of pages of governmental regulations that already apply. In addition, if we sell wholesale or retail, we have to meet the requirements of those who buy our products. And, though they don’t have the force of law behind them, as is well shown in “Food Safety in the 21st Century” (http://mercatus.org/sites/default/files/publication/MOP71_Food%20Safety_web.pdf), our customers’ requirements are very powerful and can put us out of business even more quickly than the government.
I thank Mr. Jolley and Mr. Hoefner for their informative exchange and “Food Safety News” for having printed it. I have no question that this has expanded the scope of the debate.
The fact that the S 510 is bipartisan does not mean there is no need for its provisions to be debated; rather, it means it creates the opportunity for a genuine debate. And that is what is, finally, beginning to occur.

Harry Hamil

Chuck Jolley’s statement that the Tester amendment is “based on the assumption that locally grown foods are inherently safer” is absolutely not true.
The Tester amendment exempting small food facilities is based upon the fact that Hazard Analysis & Risk-based Preventive Control (HARPC) plans were created and designed for highly processed food made via large, involved, industrial processes. HARPC plans are completely inappropriate for small processors and DO NOT WORK in any process that doesn’t have a “kill step.” Raw agricultural products by their very nature cannot have “kill steps” or they are no longer raw agricultural processes.
As pointed out by Mr. Hoefner, the Tester amendment on traceback recognizes the reality of how the farmers market part of the American food system works and that short supply chains are not where traceback and recordkeeping are needed.
Mr. Jolley’s later statement “To me, it seems to leave an enormous amount of the nation’s food production unregulated” shows how little Mr. Jolley understands the existing regulation of agriculture and food and what S 510 will actually do.
First, we, growers, processors and distributors are far from unregulated. We have thousands of pages of governmental regulations that already apply. In addition, if we sell wholesale or retail, we have to meet the requirements of those who buy our products. And, though they don’t have the force of law behind them, as is well shown in “Food Safety in the 21st Century” (http://mercatus.org/sites/default/files/publication/MOP71_Food%20Safety_web.pdf), our customers’ requirements are very powerful and can put us out of business even more quickly than the government.
I thank Mr. Jolley and Mr. Hoefner for their informative exchange and “Food Safety News” for having printed it. I have no question that this has expanded the scope of the debate.
The fact that the S 510 is bipartisan does not mean there is no need for its provisions to be debated; rather, it means it creates the opportunity for a genuine debate. And that is what is, finally, beginning to occur.

Barbara Doran

This bill is so scary to me. I hope and pray that this bill will not hurt our farmers and ranchers and our small farm gardens that sell directly to the consumer. This bill was bought and paid for by Monsanto. What is their benefit from the passage of this bill? Will we be made to only plant their altered seeds?
Of course this was voted on by both the Dem. and Rep. they both made out like bandits from the amount of money they got from Mansanto. We need to watch the results of this bill very closely. Costing us taxpayers $l.5 bil. Then we will have 17,000 people running around our counties, making a mess of themselves since they will probably be undereducated in the ways of our farmers.
We do not have a food safety problem. We have a bunch of lazy FDA people who are not doing their jobs now. If they were doing their jobs the peanut problem would never have happened.
Our government is getting too big and needs to be pared down not hiring more people. Stop the madness.